Family Law & Social Media ESI

A New Jersey State Court determined the imputed income of a defendant in a child custody case to be $100,000 after reviewing photos from social media submitted by the Plaintiff. Fitzgerald v. Duff, 2013 N.J. Super. Unpub. LEXIS 1376 (App.Div. June 7, 2013). The Court of Appeals reversed the denial of a reconsideration motion.

The Defendant originally stated his income was only $21,000 according to his 2011 tax return. The Plaintiff (the child’s grandmother) offered social media photos of Defendant’s speed boat and a 2011 Chevrolet Camaro. Other social media photos included the Defendant’s “elaborate, tropical wedding, diamond engagement and wedding bands and him throwing $100 bills.” The Plaintiff also offered social media comments evidencing his successful tattoo business. Fitzgerald, at *4.

The Trial Court believed the Defendant made more many then he originally claimed. The Trial Court stated:

[B]ased on everything before me, I believe an imputation of income to the defendant is appropriate. He has a business with two locations. It’s . . . a large cash business and the [c]ourt believes that the records aren’t truly reflective of the income. The problem is that the [c]ourt has nothing other than what was stated last time, which is that there was evidence based on an internet page on MySpace that defendant makes in excess of $250,000 from the business of which he’s the sole owner.

I have the web page, I have photographs of his boat . . . . And certainly the boat, in and of itself, indicates a lifestyle beyond $15,000 per year. I think it’s appropriate . . . without more information, to impute income of at least [$]100,000 per year. . .

The Defendant challenged the finding, offering tax returns and other evidence, such as the age of the boat and that the wedding was paid for by family. The Trial Court rejected this evidence and maintained its original finding.

The Court of Appeals reversed and remanded back to the Trial Court. While the Court of Appeals did find there were factual issues on the Defendant’s income that had to be resolved that involved credibility, the Trial Court did not conduct the “fundamental fact finding” required under state law Rule 1:7-4. This rule requires that a “trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.” Fitzgerald, at *11, citing Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

Bow Tie Thoughts

A good friend recently asked me what percentage of lawsuits in the United States involve electronically stored information. I think at this point it is easier to identify the cases without some form of ESI.

The above was a child support case where social media photos challenged the amount of income earned by the Defendant. I believe every state court judge hearing cases in Family Court and the TRO calendar see ESI on a daily basis in the form of social media posts, photos and text messages.

Consider the following hypothetical:

Auto accident where liability and damages are disputed.

Pam Plaintiff and Danni Defendant both arrived at the 4 way stop sign at the intersection of Cardozo & Palsgraf at the same time.

Pam’s Smart car was to the right of Danni’s Escalade.

Both parties claim the other signaled for the opposite driver to enter the intersection first. Both entered the intersection and collided.

Danni’s Escalade had no visible damage.

Pam’s Smart car was a total wreck.

Immediately after the accident, Pam took a photo of her car and posted the social media message: “Whoops, my bad.”

Danni Defendant had a “black box” installed by insurance company to encourage good driving habits on her Escalade. Danni has never received a discount on insurance rates for good driving.

This hypothetical personal injury case would have multiple electronically stored information that could be produced in discovery. How many attorneys would actually try to get the data from the “insurance black box”? Would the data be on the device in the car or available from the insurance carrier? How about the smartphone photo, that likely has GPS data? Or the Plaintiff’s party admission on social media?

Not every case will involve Terabytes of data, but it is a good bet there will be some form of ESI to consider, from a text message to a social media post. Attorneys will serve their clients well by considering the different types of electronic evidence that could be relevant in their lawsuits.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.